Is NYC’s criminal justice system about to become less equitable?

Is the federal government poised to take regulatory action that could breed the next tragedy like the one that took Eric Garner’s life? 

That’s what worries the mother of Garner, the Black man who died in a police chokehold in Staten Island for merely peddling loose cigarettes,  about a forthcoming Food and Drug Administration ban on menthol cigarettes  — and understandably so. 

Garner’s senseless death was the result of the well-intentioned but misguided war on drugs, which has been one of the biggest drivers of mass incarceration, especially of Black and Latino Americans, since the 1970s. As a former deputy inspector with the New York Police Department, I know from experience that the NYPD knows the unintended consequences of this misguided movement all too well. 

Local, state and federal policymakers should be doing everything they can to rectify the imbalances the war on drugs has caused the criminal justice system. Instead, in early September, the U.S. Food and Drug Administration (FDA) is expected to expand this war to a new front by banning menthol cigarettes. This decision would increase law enforcement’s presence in New York’s communities of color, which will lead to more arrests and incarceration.  

Should the ban go into effect, a person arrested for a menthol cigarette-related crime could face prosecution for that crime itself and, if applicable, multiple prison terms due to repeat offender statutes, immediate revocation of parole, and disenfranchisement in the states that revoke the right to vote for felony convictions. 

The prospect is especially concerning for New York, a city where 89 percent of Black smokers use menthol cigarettes. Imposing a ban on this product of choice in the city’s communities of color would just lead to more Black Americans facing unneeded interactions with police.

The Sentencing Project has explained the potential human toll of banning menthol cigarettes. It noted that in 2014, the New York Police Department made 581 arrests for the sale of untaxed cigarettes. “A menthol cigarette ban only raises the risk of similar future police encounters and violence,” the organization concluded. 

Let’s make one thing clear: that’s not something New York City can afford. 

According to the NYPD, 50 percent of the city’s post-stop and frisk era arrests are already hitting Black Americans despite African Americans comprising less than one-quarter of the state’s population. What’s more, data from the New York Civil Liberties Union indicates that, in just Manhattan alone, the courts have convicted Black people of felonies and misdemeanors at over 20 percent the rate they have whites over the past two decades.  

History shows prohibitions on addictive substances disproportionately harm communities of color.

After the United States adopted harsher penalties for crack cocaine and other drugs, for example, the Black incarceration rate in this country rose from approximately 600 per 100,000 people in 1970 to 1,808 in 2000. The rate for the Latino population grew from 208 per 100,000 people to 615. In 2001, the then-director of the ACLU’s Drug Policy Litigation Project called the U.S. war on drugs “the new Jim Crow.”  

Historically, the U.S. criminal justice system has also punished Black people more harshly than white people, regardless of age, for the same crimes. White and Black people use and sell drugs at similar rates, but Black people are significantly more likely to be arrested, convicted and incarcerated on drug charges. The FDA’s ban would exacerbate these disparities. 

The law enforcement community must continue to work to prevent tragedies like Garner’s. Ask any NYPD officer and they will say that this is their department’s principal goal. However, the federal government mandating that police increase their presence in communities of color — in the name of addressing a public health issue — would negate the work my community is doing to advance reform.  

Cancer is the leading cause of death among Hispanics, and Black people have the highest death rate and shortest survival of any racial/ethnic group in the United States for most cancers. The federal government should address these disparities. That said, addiction to tobacco, alcohol and other drugs is a health policy matter, not a law enforcement one. The only way to deal with any addiction is through a combination of prevention, treatment, and education. 

If our leaders in Washington want to avoid repeating dangerous mistakes of the past, they should take a look at those options and stop this menthol ban while they still can. 

NYPD Deputy Inspector Corey Pegues (Ret.) is the author of “Once A Cop” and the subject of the documentary “A Cops and Robbers Story.”

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